Mandatory reconsideration is something of a hybrid feature of administrative justice. In terms of design, this is obvious. It is a form of redress in one sense, but it is also a form of primary decision-making in another.

By Robert Thomas and Joseph Tomlinson, School of Law, University of Manchester

We recently held a joint UKAJI/University of Manchester seminar on initial decision-making, internal review and administrative justice. We wanted to engage with people within government about the primary stages of administrative justice. The central purpose of the seminar was to explore what we know and what we need to know about practices relating to initial decision-making and internal review within government. Researchers, practitioners, and those involved in central and local government attended to engage in discussions.

The main themes covered in this session on social security were the volumes of decisions, improvements made to initial decision-making and the role of mandatory reconsideration. Speakers included Des Healy of the Department for Work and Pensions (DWP); Joanna Wallace, the Independent Case Examiner (ICE) and Grainne McKeever of the University of Ulster and the Social Security Advisory Committee.

Des Healey spoke of current reform measures, current improvement activities and continuous improvement within DWP. Healey noted that turning management information into Official Statistics at the level of accuracy and quality demanded by the UK Statistics Authority has proved more challenging than anticipated, but the DWP aims to publish data on mandatory reconsideration starting in summer 2016. He also noted the opportunity for improvements from feedback from the tribunal.

‘Since April 2015 the Social Security and Child Support Tribunal started to provide DWP with summary reasons feedback for its decisions: summary reasons provide crucial feedback to improve learning and provide transparency in judicial decision making for claimants and DWP.’

Joanna Wallace explained her role as the Independent Case Examiner (ICE). The ICE provides an independent review system for addressees of decisions who feel they have been treated unjustly. The work of the ICE covers multiple agencies relating to welfare benefits, including the Child Support Agency, Jobcentre Plus, and the Pension Service. The ICE is funded by the DWP and draws its staff from the Department, though the ICE herself is not a member of the Civil Service. The review functions of the ICE are carried out through the investigation of complaints raised by citizens, the highlighting of system-wide failures or problems, and the publication of reports.

Grainne McKeever spoke to the evidence gathered for the SSAC’s forthcoming report on mandatory reconsideration. She discussed the views received on how the policy objectives are being met.

‘Still much to recommend the policy objectives but evidence submitted to the SSAC indicates that these objectives are not being met and that further barriers to administrative justice have arisen as a result.’

Immigration

Paul Rushton of the Home Office spoke of the Home Office’s new administrative review process introduced following the withdrawal of almost all immigration appeals under the Immigration Act 2014. The Independent Chief Inspector of Borders and Immigration has recently published his report into administrative review. This report makes a number of recommendations.

Homelessness

Caroline Hunter, School of Law, University of York, spoke of her research into homelessness internal reviews. Hunter highlighted many points, in particular the chronic oversight of government in not collecting any data on homelessness internal reviews (the matter appears to have fallen in the gap between the Department for Communities and Local Government and the Ministry of Justice). The only data available has been collected by Hunter with her colleagues Dave Cowan, Abi Dymond, and Simon Halliday. Hunter made an important point about the role of internal review: it is, for the vast majority of people, ‘their experience of redress. In other words, little comfort should be taken from the fact that higher rungs on the redress ladder enjoy certain features that might be taken to mitigate their absence on the bottom rung.’

‘Although homelessness internal review was conceived in policy terms as an easy-to-use check on the quality of an initial decision (the equivalent of asking to see the manager), over time it has become a much more legalised form of dispute resolution whereby the use by applicants of lay and legal representatives is commonplace.’

Conclusion

The day’s discussion emphasised the importance of ensuring high-quality initial decision-making and the presence of effective internal review mechanisms. The discussions also highlighted how systems of initial decision-making and internal review are designed within an environment of competing interests such as the desire for high-quality information versus the need for efficiency. There is an apparent lack of joined-up thinking about how such systems can be designed to operate optimally within these conditions. It also highlighted the growing role of both initial decision-making and internal review as part of the fundamental core of administrative justice.

Discussion

Shame that you didn’t invite any service users to your seminar. When you only gather round one side of the table you limit the scope of the debate. As a service user who has had a number of internal reviews I can confidently state that they serve only to prolong the process and cause more suffering to the complainant. Basic psychology will tell you that we humans are extremely poor at holding ourselves to account. We use various biased heuristic mechanisms to determine that the fault lies elsewhere. It is no different in internal review where one colleague passes judgement on another. There is the obvious bias of loyalty, but above that there may well be targets to meet regarding upheld and not upheld cases. Self-assessment is unreliable to say the least and should not form a part of administrative justice. Rather than internal review which is a waste of time and money, there should be regular, external audit of decision making with fines and sanctions applied when standards are not met. How you prevent ‘regulatory capture’ of the external audit bodies is another problem!

Thank you for the comment, which gives useful insight from the service user’s key perspective. We did not intend to exclude anyone from the seminar and in fact posted the invitation on our blog, hoping to reach as wide an audience as possible. Your views are valuable and we very much welcome your contributions to the discussion.